making local government more ethical

Willful Ignorance by Government Attorneys

Over the weekend, I read a March 2010 draft of Rebecca Roiphe's law review article "The Ethics of Willful Ignorance," which appeared in the Georgetown Journal of Legal Ethics, Volume 24, Issue 1 (Winter 2011).

Willful (or deliberate) ignorance (or blindness) describes what happens when someone has reason to believe that something is wrong (often that misconduct has occurred) and chooses not to look further into the matter (often in order to be able to deny any knowledge of misconduct). Roiphe looks at willful ignorance by a citizen in a criminal context and by a lawyer in criminal and civil contexts. She notes that in certain criminal situations,where there is a statutory obligation to know, a citizen who willfully ignores facts that would trigger such an obligation can be held responsible. For example, if someone has a reason to believe that there are illegal substances in a car she is driving, she has an obligation to look for them. If she does not, she can still be held guilty of transporting those substances (the principal case is United States v. Jewell, 532 U.S. 697 (en banc), cert. denied, 426 U.S. 951 (1976)).

Roiphe looks at how the Rules of Professional Conduct deal with willful ignorance. Model Rule 1.2(d) says that "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent."

Rule 1.0(f) defines knowing as follows:
    (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
Roiphe believes that this definition allows an attorney to choose not to read documents that may contain evidence of misconduct. An attorney is not required to look in his file, even if he has reason to believe that there are the equivalent of illegal substances in it. In other words, citizens are held to a higher standard than lawyers hold themselves to.

The principal argument in favor of allowing attorneys to be willfully ignorant of their clients' misconduct is that requiring them to investigate their own clients would ruin the attorney-client relationship. This argument does not work for organization lawyers, because organization officers and employees are not their clients; the organization is. Investigating and reporting official misconduct is in the interest of its client organization.

Comment 3 to Rule 1.13, on the organization as client, sort of recognizes this by adding to the definition of "knowledge," "a lawyer cannot ignore the obvious." Roiphe notes that another reason for this addition is that, within a client organization. "the tension between the duty of confidentiality and the reporting obligation plays no role." That is, if an organization's attorney suspects that an employee is engaged in misconduct, the attorney is in no way harming the client by reporting the suspected misconduct to the appropriate internal authority. In fact, the attorney is doing the client a favor.

Roiphe also notes that the Rules on competence and diligence (Rules 1.1 and 1.3) themselves impose an obligation to know. How can you effectively advise a client if you don't know the facts?

The Government Attorney Context
Roiphe does not deal with government attorney scenarios, but they are essentially organizational scenarios with the attorney having an additional obligation, to the public. A citizen generally has limited obligations. An attorney generally has greater obligations due to the special role lawyers play in our legal system, and these obligations are recognized, if not clearly codified, in the Rules of Professional Conduct. And a government attorney has the greatest obligations of all, both as lawyer and as public servant.

This is why a government attorney should not be allowed to plead willful ignorance. If she has reason to believe that officials or employees are engaged in ethical misconduct, or that they are giving her false information or withholding information, she has an obligation to question what is told her at face value, to investigate further, and to report her suspicions to the appropriate authority, which in those jurisdictions with an ethics program (or that employ a state or regional ethics program) is the ethics commission, ethics officer, or inspector general.

Let's say that a government attorney has been told that family members and business associates of council members are being given no-bid contracts, but the attorney has no hard evidence. If the attorney is approached by someone from the procurement department about the legality of one of these contracts, but is not told that the contract is going to an official's family member, does the attorney have an obligation to ask questions about the contractor and about why the contract is not being bid out? If the attorney does ask, and the procurement officer tells her that no relative is involved in any way with the contractor, and that the contractor is the sole producer of the required materials, should the procurement officer accept this or investigate further?

I believe that the attorney should investigate further, stop the contract from going forward, if possible, and report if it appears that misconduct has occurred. In fact, even if no official or employee seeks the attorney's advice, I believe she has an obligation to look further into the matter or go to someone who has more expertise in the area to do so.

A government attorney who gets a constant flow of informal information about what is going on in her government and who understands more than anyone else the legal implications of this information has a special obligation not only to the client organization, but also to the community itself, to investigate reasonable suspicions of misconduct and not to accept without further inquiry the word of those possibly involved in the misconduct.

Willful ignorance solves a lot of problems for a government attorney, whose job is hard enough without feeling required to look into suspicions of misconduct by those who are not only the closest thing they have to clients (the government as client is abstract), but also often party allies, social acquaintances or even friends, as well as bosses who can fire her.

But the government attorney's situation is not best solved by allowing willful ignorance. It is better solved by doing what is possible to make the position of government attorney as independent and non-political as possible, by preventing partisan involvement and by discouraging socializing with those one advises. Roiphe talks about the need for organization attorneys to distance themselves from corporate officers. This applies equally in the government context.

Even when attorneys do not advise misconduct, are not involved in it, or even have no direct knowledge of it, they often have an important role in the misconduct. Sometimes they approve parts of the transaction, sometimes they argue for the matter before a government body, sometimes they say there is an attorney-client privilege that prevents the matter from being discussed publicly, taking a body into closed session. Government attorneys are similar to someone transporting drugs in their car, and there is no way for the public to know whether they knew there were illegal substances in their legal file or not. Therefore, it doesn't matter how much they know, only whether they knew enough to inquire further.

Roiphe notes that criminal enterprises "play with division of labor and responsibility. They succeed by creating a sum more powerful than the enterprise's parts and they do so, in part, by making sure that no individual and no firm is the repository for all the knowledge or all the wrongdoing. This generates plausible deniability, which protects the individuals along with the enterprise. Lawyers often contribute to this dynamic by defining their job narrowly."

Government attorneys have much broader obligations than a criminal attorney. In order to fulfill their obligations to the public, they must look in the file, ask questions, and not necessarily accept the answers they are given. The public has a reason to expect its attorneys to investigate and report reasonable suspicions of misconduct, and to confront officials concerning the legality of their conduct. If they don't feel comfortable confronting them (and this is reasonable), they should turn the matter over to the ethics commission or inspector general.

Robert Wechsler
Director of Research, City Ethics